Authority can be given to deal with all or some aspects of the adult’s property, money, personal welfare and health. Legal Aid can be available to fund the costs associated with obtaining an Intervention or Guardianship Order. We can assist you with this, assessing whether you qualify for Legal Aid and guiding you through the process. Prior to applying for a Court Order you should also consult as far as possible, with the incapacitated adult to identify their wishes. Additionally you may consult with a person such as the individual’s doctor or carer. The application to the court must include two medical reports. When an application is made for the personal welfare of the adult, a report from the Chief Social Worker is required with a declaration that the applicant is suitable. Alternatively if the order is in relation to a property or financial matters a report is required to be obtained from an individual with sufficient knowledge. Any application must be submitted to the Court within thirty days of the first examination by these report witnesses.
An Intervention Order is an appropriate action where there is a need for a ‘one-off’ decision or action to be taken in a short period of time where the outcome can be predicted. This may involve applying for authority to release an adult’s assets or to settle any outstanding bills, and then transfer the proceeds into the adult’s Bank account. Only one person can be appointed as an intervener. You will require to apply to the local Sheriff Court for an Intervention Order. Within the application you must justify to the Court why the intervention is necessary and how it will benefit the adult concerned. The Sheriff must be satisfied that there is no other suitable means of dealing with the issue. In general there is no fixed time period stipulating the duration of your appointment, instead the order will last until you have completed the action, authorised by the court order. The application will set out a list of powers which will enable you to look after the adult’s affairs. As an intervener you will require to regularly report to the Office of the Public Guardian and records must be kept as the Office of the Public Guardian may request information from the intervener. When the action under the Intervention Order has been completed, you require to submit evidence of this to the Office of the Public Guardian.
A Guardianship Order grants wider powers and gives someone authority to look after an incapacitated adult’s finances and/or welfare on a continuous basis. The Order can grant solely financial powers or welfare powers, or alternatively the order may include a combination of both depending on the needs of the adult. It is possible for more than one person to be nominated as a Guardian and often this is the preferred route as it enables the responsibilities to be shared. One family member may deal with the financial matters and another may deal with decisions in relation to the adult’s welfare. It is prudent to appoint a substitute Guardian in the event that the principal Guardian can no longer act. A Guardianship Order will be issued where the Sheriff is satisfied that the adult is incapable and there is no other way of safeguarding the interests of the adult under the particular circumstances. It is possible at a later date to appoint further persons as joint or substitute Guardians.
The application will be put before a Sheriff in Court who will decide if the adult requires a Guardian and will assess if the adult applying to be Guardian is suitable.
The procedure for obtaining a court order is complex and time consuming and it is essential you seek legal advice.
As soon as the order is granted, it will be registered with the Office of the Public Guardian and the powers granted can then be exercised. Part of the role of the Office of the Public Guardian is to provide supervision over those persons who have been appointed under Intervention or Guardianship Orders to look after an adult’s affairs. Due to the continuous nature of the Guardianship Order, there is more in-depth supervision of financial duties. The Guardian must forward an inventory outlining the assets held by the adult to the Office of the Public Guardian. Thereafter a management plan should be drawn up to detail how he will administer the individual’s estate. It is also essential that annual accounts are prepared and submitted. The Office of the Public Guardian oversees the financial and property responsibilities of the Guardian and the Local Authority supervises any personal welfare responsibilities. If you are interested in applying for a Court Order in respect of an adult please contact us and we will guide you through the process.
Louisa, we have really appreciated your expertise and guidance in progressing these matters to the point of closure and we are delighted with the outcome, especially given the very challenging underlying circumstances.
We’d also like to put on record our gratitude to your colleague Natalie O’Donoghue for her excellent support throughout this process.
If you have a query or wish for some advice please make an enquiry or contact one of our offices directly and a member of our team will be happy to assist.